Bonum Certa Men Certa

Patently-O is Still Trying to Derail Patent Reform in the United States

Trolly-O Patently-O



Summary: A look at the past week's posts from Patently-O reveals a blog whose tone shifts strongly against patent sanity and instead leans towards the patent 'industry'

A LOT of people regard Patently-O as/to be the "best" patent blog and many also consider it to be objective and balanced. We dispute that in view/light of recent posts from Patently-O, which were not only hostile towards PTAB (especially over the past half a year) but also friendly to patent trolls and apathetic at best towards USPTO patent quality. Using scholarly/academic veneer, Patently-O serves to reinforce patent extremism in the same way that some right-wing "news" sites embolden or reinforce white supremacy. The same cannot be said about other academics, who are mostly pro-patent reform (we've named many over the years).



"Using scholarly/academic veneer, Patently-O serves to reinforce patent extremism in the same way that some right-wing "news" sites embolden or reinforce white supremacy."The main writer at Patently-O is Dennis Crouch, who regularly attends events of the patent microcosm. According to him, Trump and his swamp might soon be defunding USPTO to have it run like a business rather than a service. We have not seen this suggestion anywhere else, so maybe it's an expression of a wish rather than a reality. Do we need another 'Battistelli' at the USPTO? To quote Crouch:

And, an interesting feature of the 2018 Republican House Proposed Budget is shrink the Department of Commerce – currently “rife with waste, abuse, and duplication,” and “Establish the U.S. Patent and Trademark Office as an independent agency.”


It is already independent enough as it is. Decoupling it would make things even worse. Crouch already contributed -- along with Watchtroll and IAM -- to driving Michelle Lee out. Does he want to exacerbate things even further? Probably. Yesterday he even advertised IAM.

The more dysfunctional things get, the lower patent quality will get and thus more lawsuits -- something which these people profit from. From chaos comes order? No, to them, from chaos comes income/funding. It's rather appalling.

"The more dysfunctional things get, the lower patent quality will get and thus more lawsuits -- something which these people profit from."The patent 'industry' likes to pretend that Alice is ambiguous (or not sufficiently clear) because these people simply refuse to accept reality. No software patents are tolerated by high courts anymore and Dennis Crouch is nowadays participating in immature caricatures that bash Alice. Where it says "patent industry" it actually alludes not to a real industry but a predator/parasite which sends legal threats. Actually, Alice helped a great deal and brought benefits to the real industry. Why don't they get it? Why can't they just move on? They have been trying to take a Supreme Court's decision down for nearly four years now.

According to another new post, Dennis Crouch would even side with patent trolls if he perceived it as an opportunity to help software patents. To quote:

A new amicus brief supports RPost petition for writ of certiorari – arguing that lack-of-eligibility is not a proper defense to patentability. The brief has an interesting quote from P.J. Federico (co-author of the 1952 Patent Act) suggesting (by omission) that eligibility is not a litigation defense.


Is this encouraged as another anti-Alice 'trick'?

Either way, Patently-O seems to be getting less and less objective by the week. We have been following the blog for years and can tell the difference.

The other day it wrote about "Lost Profits", which is a loaded term which presumes entitlement to profit. This is how rich people typically think and Dennis Crouch, a rich person himself, put it like this:



Lost Profits: Like definiteness, lost profit award also requires “reasonable certainty.” In the lost profit context, the rule is applied in a more-standard approach. Namely, reasonable certainty is traditionally thought of as a standard of evidentiary proof needed for factual conclusions. This makes sense in the fact-heavy damages context but not so much in the indefiniteness arena that is very often seen as wholly a question of law.

Here, the appellate court held that lost profits due to the infringement were not proven because the district court did not consider whether a non-infringing alternative would have been an acceptable/available substitute to the patentee’s product. A new trial is necessary now to calculate the reasonable royalty damages that will presumably be less than the $2 million lost profit verdict overturned on appeal.


Last but not least (from the past week), Crouch spotted something in the Court of Appeals for the Federal Circuit (CAFC) which cites a case from 70 years ago. To quote: "At the point of Novelty: An interesting bit of the opinion harkens back to the Supreme Court’s 1946 Halliburton decision – holding that functional claim language is particularly problematic when done at the point of novelty. Here, the court does not cite Halliburton but does note that the “asserted advance over the prior art” is the particular layered arrangement of the device, not “the choices of materials to perform each of the required catalytic processes.” Rather, those materials were expected to be ones already well known in the industry.

"Here, of course, the Federal Circuit is not suggesting that Halliburton is good law, but the court does implicitly conclude that there are important distinctions in the indefiniteness analysis when considering terms directed to well-known versus novel features."

"It's possible to be courteous and hold terrible views at the same time; these things aren't contradictory."The Federal Circuit (CAFC) is very different nowadays. We've commended the new chief judge, who is preceded by at least two patent maximalists who left a legacy of mischief if not corruption (Rader). They supported patent trolls, software patents, and much worse. The Supreme Court is nowadays overturning many of these decisions.

We certainly hope that the Supreme Court will set the law (de facto/caselaw) instead of the old CAFC, which was good for nobody except the patent microcosm and people like Crouch.

Truth be told, the legal 'industry' is imploding in the US as far as patents go. There's less demand for it. That's how it should be. Expect blogs like Patently-O to moan and bemoan the status quo. Crouch may do this politely and professionally, but his views will still be rubbish. It's possible to be courteous and hold terrible views at the same time; these things aren't contradictory.

Recent Techrights' Posts

Arduino is Now a Patent Bully (Qualcomm)
Qualcomm has just bought Arduino
Many Years of Microsoft Cancellations and Faked (Acquired) Revenue "Growth"
XBox is basically the "next Skype"
Microsoft's Non-Denying Denial About XBox's Death is Already Being Shattered to Pieces
Like Microsoft's 'open' 'hey hi', heralding meaningless non-committing agreements with AMD is little more than vapourware
The Register MS is Still Being Paid to Participate in the "AI" Ponzi Scheme Which Will Crash the Economy
The Register MS is hoping to get lucky by tricking people into a scam
Evidence Contradicting Microsoft's Non-Denying Denials and Expectation of Many Layoffs Soon
"Microsoft has had this constant drip of layoffs for months."
 
Participation in Cancel Culture Detrimental to One's Career
A cautionary tale
Passion Wins
we've increased the number of birds we feed to 100+
How Solderpunk and Sean Conner Started Gemini Protocol (and, Collectively, Geminispace) Back in 2019
Based on the "official" history
The Comment TheLayoff.com Has Just Censored for Criticising a Ridiculous Puff Piece of IBM Management
If comments get censored for their "style" rather than their substance, then society will be worse off
The Power of Writing Down Facts
The more we write and publish, the more people will know what happened
Slopwatch: UbuntuPIT Joins the Slopfarms Club
Slopfarms gonna slop
Links 07/10/2025: Privacy at Risk, GAFAM Remains Off the Hook
Links for the day
Gemini Links 07/10/2025: Modern Retro Console Idea and Batch vs Bash
Links for the day
Links 07/10/2025: International Criminal Court (ICC) Convicts Ali Kushayb; Moroccan Imprisoned for 'Offensive' Shirt
Links for the day
Links 07/10/2025: EU' Chat Control is Back, US Cracks Down on Democracy
Links for the day
Techrights Pursues Justice and Truth Because, Without Those, Society Descends Into Chaos
most people reject dogma and pseudoscience
Upcoming Talks by Richard Stallman in Helsinki, Göteborg, and Rome
Join with him and share the software
Something Bad is Happening in the Open Source Initiative (OSI)
The latest OSI blog post is from a Microsoft operative and a few weeks ago the Executive Director left
TLS 1.3 Dominates Geminispace (99% of Known Capsules)
it's nowadays safe to assume almost every capsule can handle TLS 1.3
Why soylentnews.org Has Been Having Technical Difficulties Lately
The network has been going up and down quite a lot this past week
A Statement Against Violence
The facts are on our side
They've Run Out of Things to Rebrand or Label as "AI"
The next few years will be interesting because if Microsoft lays off tens of thousands of workers each year, there won't be much left except mountains of debt and dying brands
Richard Stallman Confirms His Talk in Göteborg This Coming Friday
"The hosts say that the list will not be given to the state"
Most of the "Linux" Results This Morning in Google News Are LLM Slop From the Same Slopfarm, Plagiarising Phoronix
The main question is, does Google even care at this point?
Gemini Links 07/10/2025: Civil War and "Goodbye Web"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 06, 2025
IRC logs for Monday, October 06, 2025
The "AI Revolution" is Going Very Well, Right?
money that does not exist and alleged potential that is pure fiction
Links 06/10/2025: Scam Altman Himself Admits He Runs a Scam Based on a Bubble, US Administration Adopts “War From Within” Narrative to Crush Opposition/Dissent
Links for the day
Slopwatch: Fake Ubuntu 'Articles' and Google News Helps People Who Plagiarise Phoronix Using LLMs
Michael Larabel can't possibly be happy about that
6,000 Pages/Articles a Year
Today in one month from now the site turns 19
When Things Become So Ubiquitous That They're Almost Nameless
The notion or the concept of software freedom isn't tied to any particular brand or project, so it should still resonate
At Least 3 Richard Stallman Talks in Europe Confirmed So Far, Next Week in Rome There's Another
Dr. Stallman has not announced this yet
IDG Seems to Have Abandoned Sandra Henry Stocker's UNIX/Linux Column
Unless we hear otherwise or see some update/s, this may mark another death blow from IDG
Gemini Links 06/10/2025: Winter Nights and "Virtue Signaling"
Links for the day
Links 06/10/2025: Scientific Awards and Typhoon Matmo
Links for the day
IP Kat Gone Bonkers, Pushing Slop in Patents (Likely Illegal, With Severe Consequences)
AstraZenecaKat: "Last time, this Kat covered some practical steps on how to ensure client confidentiality when using AI tools (IPKat)."
Links 06/10/2025: Grokipedia as Malicious Slop, US 'Martial Law' a "New Normal"
Links for the day
Fake Economics and Clown Computing Circuses
who's gonna pay for these scams?
Nobel Prize in Economics Does Not Exist, It's Propaganda From Sveriges Riksbank
"It is that time of the year when it is important to remind people that there are no Nobel Prizes for professional wrestling, astrology, or economics"
Rust is Eating Linux
That's a recipe for problems
Cindy Cohn (Executive Director of EFF) is a Millionaire, Earned Almost $30,000 Per Month Before Departing While the EFF Lost Money
EFF is "Big Business"
Non-Denying Denial From Microsoft (Again) Regarding the End of XBox Consoles
It's kind of hilarious that even the site chosen by Microsoft to relay its BS, based on past loyalty, isn't quite buying it
Bringing Back Lost Articles From the 1990s: Microsoft Products Leave Door Open to NSA
Nothing has changed since then
When the Slop Bubble Pops People Will Say Richard Stallman Was Right (Again)
What was once known as Computer Science turned into "IT"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 05, 2025
IRC logs for Sunday, October 05, 2025
Links 06/10/2025: Science, Hardware, and Andrej Babis Making a Comeback
Links for the day
Links 05/10/2025: Slow News Day and Wondering About the Canada Post Walkout
Links for the day
Gemini Links 05/10/2025: Telnet Debugging and The Programmer’s Brain
Links for the day
More Than "Just a Rumour": XBox Seems to Have Just Died
At this point, why would any studio out there target or partner with XBox?
How to Tell Your Community, Project or Company is Being Infiltrated by Saboteurs
How to identify nefarious social engineering
The Fortieth Birthday of the FSF Made Us Extremely Happy
It feels like the 'hacker community' is regrouping to discuss things and prepare for the next Big Challenge
Chat Control 2 Them, Not 2 U
Follow the advice of Dr. Patrick Breyer
Mozilla: Throw Away Your "Old" PC and Enable "Digital Rights Management (DRM)"
This is heading in a bad direction
Controlling Our Computing for Another Forty Years
40 years of freedom
Motivational Small Place to Run Large Sites
We deem this scenery motivational and inspiring
Techrights' Text Version (Daily Bulletin) Turns Five This Month
our plain-text bulletins are turning 5 this month
We'll Continue Covering the Moribund OSI and Other Dysfunctional if Not Hostile Institutions
Stefano Maffulli's departure is due to his defection and due to him failing the mission in pursuit of money (his salary)
Microsoft XBox is Dying as More Retailers Stop Stocking It and Massive Layoffs Planned Again
Microsoft is circling down the drain
Links 05/10/2025: Lufthansa Layoffs (4,000) and More Spotify Woes (Aside From Massive Debt)
Links for the day
The Free Software Foundation's Livestream Has Ended, Video/s Might be Online Next
I've asked whether they'll upload video of some of the event; I still wait for an answer
The Register MS Does Not Know the Difference Between Microsoft GitHub and GitLab
At the time of writing (October 5) the article from "Thu 2 Oct 2025" remains uncorrected
Linux and the Freedom Paradox
Linux is losing freedom if some external actors who only use Microsoft tools for development wrest control
"Bullshit Generators" (What RMS Calls LLMs) and Fake Images Already Target the FSF
Why does Google News promote fake articles about the FSF while omitting all the real ones?
Software Patents as a Bubble
Don't invest resources in hype; if you detect a bubble, run away from it
Links 05/10/2025: Political Leftovers, Climate Change, and Security Incidents
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 04, 2025
IRC logs for Saturday, October 04, 2025